ORDER-SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA  

 

Criminal Revision Appln. No. S- 19 of 2021.

 

Date of hearing

Order with signature of Judge

 

08.12.2022.

 

1.         For orders on M.A. No. 1319/2021 (Stay Application).

2.         For hearing of main case.

 

Mr. Aitbar Ali Bullo, Deputy Prosecutor General.

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            Mr. Riaz Hussain A. Khoso, Advocate files vakalatnama on behalf of applicant, which is taken on record. He also files a statement dated 08.12.2022, which is also taken on record.

 

            Through this revision application, the applicant has assailed the order dated 13.02.2021, passed by learned 1st Civil Judge and Judicial Magistrate, Jacobabad, in Criminal Misc. Appln. No. nil of 2021, re; Zubair khan v. The State, whereby the learned Magistrate has dismissed the application filed by applicant Zubair Khan in terms of Section 174 and 176 Cr.P.C for re-disinter and re-exhumation of dead body of deceased Faisal Ramzan Mugheri and its re-examination and re-postmortem. It reveals that aforesaid order passed by learned Magistrate was challenged before learned Sessions Judge, Jacobabad, vide Crl. Revision Appln. No.04/2021, which was made over to learned 1st Additional Sessions Judge, Jacobabad, who maintained the order of the learned Magistrate, vide his order dated 27.02.2021.

 

            The learned counsel for the applicant while arguing his case has re-iterated the same facts and grounds as urged in the memo of application.  Conversely, the learned D.P.G. supported the impugned order.

 

            Perusal of the impugned order passed by learned Magistrate reflects that, he while dismissing the application observed that: -

 

            “Before given due consideration, I would like to response upon contention that (i) before filing instant second application above named applicant through his counsel had earlier filed such like application for reasons to known the circumstances of contention. After proceedings such application and hearing the counsels on behalf of applicant and legal heirs of deceased Faisal Ramzan Mugheri, same stood allowed vide order in M.A. NO.73/2020, dated 10.10.2020 passed by this Court. Similarly, after application standing allowed, the aforesaid order was challenged before Hon’ble Apex Court and remained fully maintained. Thereafter, in compliance and directions of order dated 10.10.2020 in aforesaid miscellaneous application, the medical board constituted and postmortem report of deceased Faisal Ramzan Mugheri was properly conducted after disinter the deceased’s dead body in presence of under signed. Similarly, the circumstances of contention (ii) are seemed to be connected with circumstances of contention (i). Such like, after conducting postmortem and exhumation of deceased (after disinter the dead body) constituted Special Medical Board had issued his provisional postmortem and exhumation report detailed as above. The counsel on behalf of applicant moved numerous applications/ letters to competent authority wherein, he raised objection on the particulars as mentioned in provisional postmortem and exhumation report. In this regards, it is worth to mention here that, such provisional postmortem and exhumation report is available on the record, which is self explanatory on account of identification of grave as well as deceased’s dead body. After completion of above procedure, SHO concerned forwarded such report to SSP Jacobabad Now as for concerned with the circumstances of contention (iv) stand relevant to each other on account of the opinion. In this regards, t is worth to mention here that, looking to the circumstances of instant application and Misc. Appln. No.73/2020 filed by the same applicant through his learned counsel, which contains fully record and proceedings, during conducting enquiry course by SHO concerned, the legal heirs viz. family members had reiteratively contended by stating therein that the deceased was addicted and use to keep excess amount of addicted substances viz. alcohol, cannabis and tobacco, “Hasheesh” and etc. on that, they (family members) use to restrain to deceased, but he (deceased) did not pay any heed towards. Similarly, applicant through his learned counsel confronted and by denying the final postmortem report on account of opinions given by established medical board. Such like same dismissed vide order dated 14.12.2020 on the following grounds:

 

            The legal heirs of deceased have already been admitted and supported the version of opinion. All legal heirs subsequently by stating therein that (deceased was habitual of addictions and usually used to exchange alcoholic substances viz. Tobacco, “Hasheesh”/ Charas. Now it is worth to mention here that, deceased Faisal Ramzan Mugheri was not meet with unnatural death, but his death occurred due to exchange of above alcoholic substances in high quantity. Therefore, no cognizable offence is made out against any one. Therefore, the purpose of section 174 and 176 of Criminal Procedure Code 1898 has been achieved by applicant, proceeded in accordance with the law and so also been completed, hence, the further proceeding only vitiate the precious time of the Court, the main application is hereby disposed off accordingly.

 

            By showing grievance, the learned counsel of applicant challenged above dated order before the Court of Hon’ble 1st Additional Sessions Judge, Jacobabad. Same above dated order remained maintained and upheld by the Court of Hon’ble 1st Additional Sessions Judge, Jacobabad, and such revision application filed by the above named applicant through is counsels stand dismissed vide order dated 03.02.2021.

 

            Now in view of above discussions and circumstances, it is worth to mention here that, the main circumstances and ingredients of instant application have been discussed as above and the main application has already been disposed off in accordance with the law. Therefore, instant application is hereby dismissed as the applicant has challenged the order dated 14.12.2020 and same has been maintained by the Court of Hon’ble 1st Additional Sessions Judge, Jacobabad. Even the order was challenged and upheld by the Hon’ble Appellate Court, the applicant given preference to move this application on challenging the order of appellate Court at higher, which is not acceptable at any law. Since the postmortem of the deceased has already been conducted in presence of under signed after disinterment of dead body. Hence re-exhumation is not identical in the criminal procedure code, hence, the application is hereby dismissed as meritless.”

 

 

            The learned Additional Sessions Judge, while upholding the order of learned Magistrate observed that: -

 

            “In nutshell the facts of the instant revision are that the applicatn had earlier filed first appliation of instant nature before the Court of learned Juicial Magistrate-I, Jacobabad, for exhumation of dead body of same deceased Faisal Ramzan Mugheri, in order to know the reason of his death which was allowed by the learned Court and on the order of learned Court Special Medical Board was constituted and after conducting postmortem and exhumation of dead body of deceased, the Special Medical board issued Provisional postmortem/ exhumation report on 31.10.2020 and said medical board handed over the samples of deceased to concerned SHO for sending the same to the Punjab Forensic Science Agencies (PFSA), Lahore, for obtaining opinion and after opinion of concerned Forensic Science Agencies Lahore is received, the concerned board formed its opinion, which is re-produced as under:

 

            “The detection of major components of cannabis (also known as marijuana) such as Tetra-hydro-cannabinol (THC) which is believed to be responsible for most of the characteristic psychoactive effects of cannabis that leads to the “high” that is explained when cannabis is consumed and cannabidiol (CBD) in the stomach and liver specimens of the deceased who had a history of smoking tobacco and “Hasheesh” and excessive alcohol, therefore, sudden cardiac death (SCD), could not be ruled out.

 

            Note:- Smoking (tobacco and “Hasheesh”/ Charas) is a major cause of cardiovascular morbidity and mortally. Alcohol abuse is associated with complex metabolic changes including multiple alternations increases the risk of onset of cardio-metabolic diseases and atrial fibrillation. Acute use of cannabis increases the risk of infraction almost five fold. Sudden cardiac death associated with acute use of cannabis or synthetic cannabinolds are also reported.

 

            The deceased Faiz Mugheri son of Muhammad Ramzan Mugheri was exposed to all of the above mentioned major risk factors associated with the abuse/ addiction of toxic substances (Tobacco “Hasheesh”/ Charas, Alcohol and Cannabis/ Marjuana) which could have resulted in his sudden cardiac death (SCD).”

 

            The above opinion of the concerned Special Medical Board/ Exhumation Team was also supported by the enquiry report of SHO concerned already submitted, in which SHO concerned reported that family members of deceased have already disclosed before him that deceased was addicted and use to keep excess amount of addicted substance viz. Alcohol, cannabis and tobacco, “Hasheesh” and etc. on that family members of deceased used to restrain him, however said final postmortem report as per above opinion of medical board was denied by the applicant and then the applicant filed previous application of like nature before concerned Magistrate, where the same was dismissed vide order dated 14.2.2020 by finding that the purpose of section 174 and 176 Cr.P.C has been achieved by the applicant, proceeded in accordance with law and so also has been completed hence further proceeding shall only vitiate the precious time of the Court. The applicant challenged the order of learned Magistrate dated 14.12.2020 through Criminal Revision NO.10/2020, which was also dismissed by this Court on 03.2.2021.

 

            The learned Magistrate has also mentioned in its order that on previous application, the applicant raised objection on provisional postmortem given by Special Medical board on provisional through an application which was dismissed vide order dated 08.12.2020 by setting the applicant at his liberty to approach and challenged the same provisional postmortem report before competent supra Medical Board, even then the applicant filed the application praying for second postmortem/ exhumation of dead body of deceased Faisal Ramzan Mugheri instead of challenging the provisional before higher forum of medical board.

 

            Since the SHO had already reported to his report before concerned Magistrate that the deceased was addicted to keep excess amount of addicted substances viz. alcohol, cannabis and tobacco, “Hasheesh” etc. and the report of SHO has also been supported by the final exhumation report/ opinion of medical board showing that the death of deceased was natural therefore, the prayer made by applicant before concerned Magistrate for second postmortem of deceased has got no value at all as discussed above only on the ground that the exhumation report of deceased is false, has got no value in the eye of law.

 

            In the light of above discussion, I have come to the conclusion that order dated 13.02.2021 passed by the Court of learned Judicial Magistrate-I, Jacobabad, has got no illegality or irregularity even or infirmity, therefore, the same is maintained, thereby instant criminal revision is dismissed in limine accordingly and the application under Section 561-A Cr.P.C filed by applicant with this revision praying to suspend the operation of impugned order has become infructuous.”

 

            Careful perusal of impugned orders reflected that the orders are well-reasoned and speaking. The learned counsel for applicant has not been able to demonstrate any other cogent ground legal infirmity in the impugned orders; hence, same do not call for any interference by this Court. Accordingly, the captioned revision application stands dismissed along with pending application.

 

 

 

                                                       Judge

 

Ansari